Free Response in Opposition - District Court of California - California

Case 3:08-cr-02420-WQH

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KAREN P. HEWITT United States Attorney STEVE MILLER Assistant U.S. Attorney California State Bar No. 138020 United States Courthouse 940 Front Street, Room 5152 San Diego, California 92189-0150 Telephone: (619) 557-5432 [email protected] Attorneys for Plaintiff United States of America UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA 10 UNITED STATES OF AMERICA, 11 Plaintiff, 12 v. 13 JOSE MARTIN MEDINA-AGUIRRE, 14 Defendant. 15 16 17 18 COMES NOW the plaintiff, UNITED STATES OF AMERICA, by and through 19 its counsel, Karen P. Hewitt, United States Attorney, and Steve 20 Miller, 21 response and opposition to defendants' above-referenced motions. Said 22 response is based upon the files and records of this case, together 23 with the attached statement of facts, memorandum of points and 24 authorities. 25 26 27 28 Assistant United States Attorney, and hereby files its ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Criminal Case No. 08cr2420-WQH DATE: September 8, 2008. TIME: 2:00 p.m. GOVERNMENT'S RESPONSE AND OPPOSITION TO DEFENDANTS' MOTIONS TO: (1) (2) DISMISS INDICTMENT FOR INVALID DEPORTATION; AND TO FILE FURTHER MOTIONS

TOGETHER WITH GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY

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I STATEMENT OF FACTS On November 7, 1990, defendant JOSE MARTIN MEDINA-AGUIRRE was convicted of 8 counts of California Penal Code, Section 288 and 289, and was sentenced to 8 years in state prison. Subsequently, defendant was deported on April 25, 2008. This

deportation was ordered after defendant litigated the deportation before the immigration court. Copies of the immigration documents and Immigration Board of Appeals briefing and decision have been provided to defendant. Four days later, on April 29, 2008, at approximately 1:30 p.m., defendant went to the pedestrian primary inspection area at Calexico Port of Entry and presented a DSP-150 Laser Visa card bearing the name of "Jorge Alberto Singh-Ibarra." CBP Officer Garcia examined the card and observed that defendant did not appear to be the same individual whose picture was on the card. for further inspection. Once the officers determined defendant's true identity, he was advised of his Miranda rights. Defendant waived his Miranda rights Defendant was referred to secondary

and told the officers that he was a Mexican citizen who was born in Guadalajara, Jalisco, Mexico. He admitted that he had been previously deported fro the United States and that he bought the DSP-150 card from someone in Mexico. // // // // //

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Case 3:08-cr-02420-WQH

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II POINTS AND AUTHORITIES THE GOVERNMENT HAS AND WILL CONTINUE TO COMPLY WITH RULE 16 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE

The Government has provided 119 pages of pre-indictment discovery 5 and 142 pages of post-indictment discovery. Government will continue 6 to provide voluntary discovery when it becomes available and will 7 comply with Rule 16 and its obligations under Brady v. Maryland, 373 8 U.S. 83 (1963), and 18 U.S.C. § 3500. 9 The Government gives specific notice of its intent to offer 10 evidence of other acts under Rule 404(b). 11 Government reserves the right to offer any evidence, of any act, that 12 was performed by the defendant, that is referenced in any of the 13 discovery. 14 defendant's prior crossings, prior deportations, prior statements 15 regarding citizenship and any prior felony. 16 but 17 defendant's theory of the case is revealed. 18 B. 19 20 21 22 23 24 25 26 27 28 ANY LEAVE FOR DEFENDANT TO FILE FURTHER MOTIONS SHOULD BE STRICTLY LIMITED are not limited to events that only become relevant once The acts also include, These acts include, but are not limited to any of By this notice, the

While the government recognizes this court's discretion to permit defendant to file further motions, the Government does oppose

defendant's motion to the extent it is conjectural, overly broad and invites abuse. Any need for further motions should be justified at

the time they are filed, permitting both the Government to oppose on a motion-by-motion basis and this court to determine if such motions could in fact have been filed earlier. Any other course would invite

an interminable and protracted motion practice, resulting in delay of trial.

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THE GOVERNMENT'S MOTION FOR RECIPROCAL DISCOVERY SHOULD BE GRANTED 1. Rule 16(b) has invoked Federal Rule of Criminal

3 The 4 Procedure 16(a) in his motion for discovery. 5 Government voluntarily will comply with the requirements of Federal 6 Rule of Criminal Procedure 16(a). 7 rule are operable as to defendant. 8 The Government, pursuant to Rule 16(b), hereby requests the 9 defendant to permit the Government to inspect, copy, and photograph 10 any and all books, papers, documents, photographs, tangible objects, 11 or make copies of portions thereof, which are within the possession, 12 custody or control of defendant and which he intends to introduce as 13 evidence in his case in chief at trial. 14 The Government further requests that it be permitted to inspect 15 and copy or photograph any results or reports of physical or mental 16 examinations and of scientific tests or experiments made in connection 17 with this case, which are in the possession or control of the 18 defendant, which he intends to introduce as evidence in chief at the 19 trial or which were prepared by a witness whom the defendant intends 20 to call as a witness. 21 make such orders as it deems necessary under Rule 16(d)(1) and (2) to 22 ensure that the Government receives the discovery to which it is 23 entitled. 24 2. 25 Federal Rule of Criminal Procedure 26.2 requires the production 26 of prior statements of all witnesses except the defendant. 27 thus provides for the reciprocal production of Jencks statements. 28 stated in pertinent part: 4
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defendant

In addition, the

Thus, the 16(b) provision of that

The Government also requests that the Court

Rule 26.2

The Rule As

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After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, shall order the attorney . . . to produce, for the examination and use of the moving party, any statement of the witness that is in their possession . . . . Fed. R. Crim. P. 26.2(a).

5 The time frame established by the Rule requires the statement to 6 be provided after the witness has testified, as in the Jencks Act. 7 Therefore, the Government hereby requests that defendant be ordered 8 to supply all prior statements of defense witnesses by a reasonable 9 date before trial to be set by the court. 10 any form these statements are memorialized in including, but not 11 limited to, tape recordings, handwritten or typed notes and reports. 12 D. 13 14 15 16 17 18 19 20 21 22 23 24 25 S/ Steve Miller 26 27 28 5 STEVE MILLER Assistant U.S. Attorney THE GOVERNMENT'S MOTION FOR FINGER PRINTS SHOULD BE GRANTED This order should include

The Government moves this court to permit the Government's fingerprint expert to take defendant's fingerprints in anticipation of trial testimony linking defendant to the warrant of deportation. III CONCLUSION For the foregoing reasons, the Government respectfully requests that defendant's motions be denied and the Government motions be granted. DATED: August 11, 2008. Respectfully submitted, KAREN P. HEWITT United States Attorney

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Case 3:08-cr-02420-WQH

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1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF CALIFORNIA 3 UNITED STATES OF AMERICA, 4 Plaintiff, 5 v. 6 JOSE MARTIN MEDINA-AGUIRRE 7 Defendant. 8 9 10 11 12 13 14 1. Gerald McFadden, [email protected] 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6 s/ Steve Miller STEVE MILLER I declare under penalty of perjury that the foregoing is true and correct. Executed on August 11, 2008 I hereby certify that I have caused to be mailed the foregoing, by the United States Postal Service, to the following non-ECF participants on this case: 1. None IT IS HEREBY CERTIFIED THAT: I, Steve Miller, am a citizen of the United States and am at least eighteen years of age. My business address is 880 Front Street, Room 6293, San Diego, California 92101-8893. I am not a party to the above-entitled action. I have caused service of on the following parties by electronically filing the foregoing with the Clerk of the District Court using its ECF System, which electronically notifies them. ) ) ) ) ) ) ) ) ) ) Case No. 08cr2420-WQH

CERTIFICATE OF SERVICE

the last known address, at which place there is delivery service of mail from the United States Postal Service.

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